1. In considering a motion to dismiss for failure of the petition to state a claim, the
court must view the facts in the light most favorable to the plaintiff and, with all
doubt resolved in the plaintiff's favor, determine if the petition states any valid
claim for relief. Dismissal is justified only when the allegations of the petition
clearly demonstrate the plaintiff does not have a claim. However, this court is
not required to accept conclusory allegations argued by the plaintiff regarding the
legal effect of the presumed facts if the allegations do not reasonably follow from
the facts.

2. A statute of limitations extinguishes the right to prosecute an accrued cause of
action after a period of time. It cuts off the remedy. It is remedial and
procedural. A statute of repose limits the time during which a cause of action
can arise and usually runs from an act of a defendant. It abolishes the cause of
action after the passage of time even though the cause of action may not have
yet accrued. It is substantive.

3. The 8-year statute of repose under K.S.A. 60-515(a) applies to all tortious acts
committed while the plaintiff is a minor, regardless of how old the plaintiff is (a
minor or an adult) when the action actually accrues.

4. The nature of a claim--whether it sounds in tort or contract--is determined from
the pleadings and from the real nature and substance of the facts therein
alleged.

5. Certain duties and obligations are imposed upon physicians and hospitals by
law. Breach of such duty by a physician is malpractice, and an action for
damages for malpractice is one in tort, even though there may have been an
express or implied contract for proper care.

6. The general rule is that a plaintiff will not be permitted to characterize a tort
action as one in contract in order to avoid the bar of the statute of limitations or
governmental immunity.

7. Determining whether a statute violates the constitution is a question of law.
When determining a question of law, this court may exercise an unlimited de
novo standard of review.

8. A statute is presumed constitutional, and all doubts must be resolved in favor of
its validity. If there is any reasonable way to construe a statute as
constitutionally valid, the court must do so. A statute must clearly violate the
constitution before it may be struck down.

9. K.S.A. 60-515(a) qualifies as malpractice legislation, and the rational basis test is
the appropriate standard to apply in evaluating the equal protection concerns of
the statute.

10. The rational basis test, also known as the reasonable basis test, is violated only
if the statutory classification rests on grounds wholly irrelevant to the
achievement of the State's legitimate objective. The state legislature is
presumed to have acted within its constitutional power, even if the statute results
in some inequality. Under the reasonable basis test, a statutory discrimination
will not be set aside if any state of facts reasonably may be conceived to justify it.

11. If a remedy protected by due process is abrogated or restricted by the
legislature, such change is constitutional if the change is reasonably necessary
in the public interest to promote the general welfare of the people of the state,
and the legislature provides an adequate substitute remedy to replace the
remedy which has been restricted.

12. The test in determining the constitutionality of a statute under due process or
equal protection weighs identical factors.

13. In order to insure due process, the legislature is required to provide an adequate,
substitute remedy when a common-law remedy, such as a minor's cause of
action for personal injury, is modified or restricted.

14. K.S.A. 60-515(a) restricts a minor's common-law right to recover damages for
personal injury by imposing an 8-year statute of repose on minors' causes of
actions. The quid pro quo for this restriction is the continued availability of health
care in Kansas. Health care is readily available in Kansas because medical
malpractice insurance is available to physicians at a reasonable rate, in part due
to the passage of K.S.A. 60-515(a) and its 8-year statute of repose.

15. Kansas does not recognize a separate right to an open court independent from
the recognized right to due process.

16. Whether the doctrine of continuous treatment should be recognized in Kansas
within the context of a medical malpractice action is a question of law. Thus, this
court may exercise an unlimited, de novo standard of review.

17. The statute of repose for a malpractice cause of action begins to run from the
time the malpractice occurs, regardless of the negligent doctor's continued
treatment of the patient.

18. A parent's decision regarding whether a child's medical condition should be
investigated for signs of malpractice or whether a malpractice action should be
pursued is an exercise of parental discretion regarding a child's medical
condition and financial well-being, in which a court should not interfere.

Bryson R. Cloon, of Cloon, Bennett & Ronan, of Overland Park, argued the cause, and was on the
brief for appellant.

Roger W. Warren, of Blackwell Sanders Matheny Weary & Lombardi, L.C., of Overland Park,
argued the cause, and Todd A. Scharnhorst, of the same firm, was with him on the brief for appellee
Donald D. Vannaman, M.D.

Theodore A. Corless, of Armstrong, Teasdale, Schlafly & Davis, of Kansas City, Missouri, argued
the cause, and Lynn W. Hursh and Thomas H. Mills, of the same firm, were on the brief for appellees
Marcile Bonin and Arthur R. Bonin, Jr.

ABBOTT, J.: The plaintiff, Amanda Kay Bonin, brought this action against her
medical doctor for malpractice and fraud and against her parents for negligence in not
bringing an action against her doctor before her cause of action became barred by the
applicable statute of repose. The trial court held against her on all issues. This appeal
involves the constitutionality of K.S.A. 60-515(a) (statute of repose); a claim of fraud for
failure of plaintiff's doctor to disclose her condition; a claim that the doctrine of
continuous treatment is an exception to the statute of repose; and a claim that the
doctrine of parental immunity does not shield plaintiff's parents from liability.

Amanda Kay Bonin was born on February 22, 1976. Defendant Dr. Donald D.
Vannaman became her pediatrician shortly after birth. In January 1980, when Amanda
was 3 years old, Dr. Vannaman evaluated her for possible chest pneumonia. As a part
of this evaluation, Dr. Vannaman referred Amanda to a radiologist who performed a
chest x-ray. In summarizing Amanda's chest x-ray, the radiology report stated in part:
"There is mild scoliosis of the thoraco-lumbar spine but this could be positional." Dr.
Vannaman made handwritten notes on the radiology report concerning Amanda's
pneumonia. Thus, it appears that Dr. Vannaman reviewed the radiology report. Dr.
Vannaman never communicated to Amanda or her parents any concern raised by the
radiology report that Amanda might have scoliosis. While Dr. Vannaman provided all of
Amanda's care, including her physical exams, he took no steps to further evaluate her
possible scoliosis condition. Dr. Vannaman did not diagnose Amanda with scoliosis at
this time. According to Amanda, scoliosis in the "mild" stage is correctable with proper
treatment. Prompt and proper treatment of scoliosis at an early stage prevents
progression into the "moderate" stage, which may require invasive surgery and cause
lifelong problems.

In May 1987, when Amanda was 11 years old, she participated in a routine
scoliosis exam performed by the school nurse at her elementary school. From this
exam, Amanda received a report of spine deformity. The report recommended that
Amanda see a physician for a scoliosis evaluation. Amanda underwent a series of
x-rays and was diagnosed with moderately severe scoliosis. As a result, Amanda
underwent several spinal surgeries. The surgeries were minimally successful, and
Amanda presently suffers severe disability, preventing her from participating in many
activities. Amanda may require future invasive surgery throughout her life.

Defendants Marcile and Arthur T. Bonin, Jr., are Amanda's parents. When
Amanda was diagnosed with moderately severe scoliosis, her parents did not
investigate to determine if Dr. Vannaman had failed to promptly diagnose Amanda's
scoliosis, nor did they bring a timely malpractice action against Dr. Vannaman.

In the fall of 1994, when Amanda was 18 years old, Amanda and her mother
began to gather Amanda's medical records, including those from Dr. Vannaman, in
order to assist Amanda in formulating a lifetime spine management plan. In reviewing
these records, Amanda discovered the 1980 x-ray report possibly identifying her mild
scoliosis at age 3. On February 21, 1995, Amanda brought this action against Dr.
Vannaman for fraud by silence and for malpractice in failing to promptly diagnose her
scoliosis at age 3.

Dr. Vannaman filed a motion to dismiss the action. Dr. Vannaman claimed that
both the malpractice and fraud claims were barred by K.S.A. 60-515(a). K.S.A.
60-515(a) is both a statute of limitations and a statute of repose. If a tortious act occurs
while a person is a minor, then the minor is entitled to bring the action 1 year after
reaching the age of majority (18), but "no such action shall be commenced by or on
behalf of any [minor] more than eight years after the time of the act giving rise to the
cause of action." K.S.A. 60-515(a). Dr. Vannaman contended that more than 8 years
from his alleged failure to diagnose Amanda's scoliosis in 1980 had passed before
Amanda filed the suit. Thus, the action was barred by the statute of repose under
60-515(a). Further, Dr. Vannaman argued that the separate fraud claim could not apply
to him because it was, in actuality, identical to the malpractice action. In response,
Amanda argued that 60-515(a) was unconstitutional and should not bar her claims, that
the continuous treatment doctrine created an exception to the statute of repose, and
that Dr. Vannaman was liable for a separate fraud cause of action.

On July 5, 1995, the Johnson County District Court granted Dr. Vannaman's
motion and dismissed the claims against him. The court ruled that 60-515(a) was
constitutional and barred the malpractice claim. The court also found that the plaintiff's
fraud claim could not be brought as a separate claim against Dr. Vannaman because it
was actually a malpractice action grounded in negligence. Further, the court held that
even if the fraud action was proper, it was barred by 60-515(b). Finally, the court
refused to recognize the doctrine of continuous treatment as an exception to the statute
of limitations or repose.

In this same action, Amanda also sued her parents for failing to bring a timely
malpractice action against Dr. Vannaman before the 8-year statute of repose under
60-515(a) had expired. Amanda's parents filed a motion to dismiss. They alleged that
Amanda's claim against them was barred by the statute of repose and by the doctrine
of parental immunity. The court granted the Bonins' motion and filed an order
dismissing the action against them, with prejudice.

Amanda filed an appeal, and the case was transferred to this court for review
and determination pursuant to K.S.A. 20-3018(c).

FRAUD CAUSE OF ACTION

The trial court held that Amanda's fraud claim against Dr. Vannaman was
actually a medical malpractice claim, grounded in negligence, and could not be filed as
a separate claim against Dr. Vannaman. As such, the trial court dismissed the claim,
and Amanda appeals.

In considering a motion to dismiss for failure of the petition to state a claim, the
court must view the facts in the light most favorable to plaintiff, and with all doubt
resolved in the plaintiff's favor, determine if the petition states any valid claim for relief.
"'"Dismissal is justified only when the allegations of the petition clearly demonstrate
plaintiff does not have a claim."'" Blevins v. Board of Douglas County Comm'rs, 251
Kan. 374, 381, 834 P.2d 1344 (1992) (quoting Bruggeman v. Schimke, 239 Kan. 245,
247, 718 P.2d 635 [1986]). However, this court is not required to accept conclusory
allegations argued by the plaintiff regarding the legal effect of the presumed facts if the
allegations do not reasonably follow from the facts. Blevins, 251 Kan. at 381. See
Knight v. Neodesha Police Dept., 5 Kan. App. 2d 472, 481, 620 P.2d 837 (1980).

K.S.A. 60-515(a) governs the time in which Amanda must file her action. See
Ripley v. Tolbert, 260 Kan. 491, 497, 921 P.2d 1210 (1996) ("[T]he 8-year statute of
repose under 60-515(a) applies to all tortious acts committed while the plaintiff is a
minor, regardless of how old the plaintiff is (a minor or an adult) when the action
actually accrues.").

K.S.A. 60-515(a) includes both a statute of limitations and a statute of repose.

"A statute of limitations extinguishes the right to prosecute an accrued cause of action after a
period of time. It cuts off the remedy. It is remedial and procedural. A statute of repose limits the
time during which a cause of action can arise and usually runs from an act of a defendant. It
abolishes the cause of action after the passage of time even though the cause of action may not
have yet accrued. It is substantive." Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831
P.2d 958 (1992).

Acting as a statute of limitations, K.S.A. 60-515(a) allows a plaintiff to bring a
cause of action, based on a tortious act which occurred during minority, within 1 year
after reaching the age of majority. Amanda turned 18 on February 22, 1994. She filed
this action on February 21, 1995, which was within 1 year of her 18th birthday. Thus,
Amanda filed this action within the statute of limitations found in 60-515(a). However,
acting as a statute of repose, 60-515(a) does not allow an action to be commenced
more than 8 years after the time of the act giving rise to the cause of action. Both
parties agree that the act giving rise to the cause of action occurred in January 1980,
when Dr. Vannaman allegedly failed to diagnose Amanda's scoliosis at the early stage.
Thus, the 8-year statute of repose under 60-515(a) would have expired in 1988, 7 years
prior to Amanda's filing this action.

Amanda tried to avoid this 8-year statute of repose in 60-515(a) by alleging two
separate causes of action against Dr. Vannaman, one in fraud and one in medical
negligence/malpractice. Amanda contends that her fraud action is timely under K.S.A.
60-513. K.S.A. 60-513 provides in pertinent part:

"(a) The following actions shall be brought within two years:

. . . .

"(3) An action for relief on the ground of fraud, but the cause of action shall not be
deemed to have accrued until the fraud is discovered.

. . . .

"(b) Except as provided in subsection (c), the causes of action listed in subsection (a)
shall not be deemed to have accrued until the act giving rise to the cause of action first causes
substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the
initial act, then the period of limitations shall not commence until the fact of injury becomes
reasonably ascertainable to the injured party, but in no event shall an action be commenced more
than 10 years beyond the time of the act giving rise to the cause of action." (Emphasis added.)

Amanda alleges that Dr. Vannaman's fraud was not "discovered" until 1994
when she requested her medical records from him. At this time, Amanda discovered
that Dr. Vannaman had failed to inform her of her scoliosis in 1980 and continued not to
inform her of her scoliosis until 1987 when she was finally diagnosed with it. At the time
of this discovery, Amanda was 18 years old. As such, she contends that 60-515(a)
does not apply to this claim. Instead, Amanda contends that 60-513 governs her fraud
claim. Thus, according to Amanda, her fraud claim against Dr. Vannaman accrued in
1994 when the fraud was discovered. Amanda asserts that she had 2 years from 1994
to timely file her fraud claim under 60-513(a)(3). Amanda filed her fraud claim against
Dr. Vannaman on February 21, 1995. Thus, Amanda argues that her fraud claim was
timely filed within the 2-year statute of limitations period from the discovery of the fraud
in 1994. See K.S.A. 60-513(a)(3).

However, Dr. Vannaman points out that 60-513(b) contains a statute of repose
which does not allow any action to be commenced more than 10 years beyond the time
of the act giving rise to the cause of action. Both parties agree that the act giving rise to
the alleged fraud occurred in January 1980, when Dr. Vannaman allegedly failed to
diagnose Amanda's scoliosis in its mild stage. Ten years from this date would be
January 30, 1990. Amanda did not file her claim for fraud until February 21, 1995.
Thus, her fraud claim, if it is valid, is barred by the 10-year statute of repose under
60-513(b).

In order to bring her fraud claim, Amanda asks this court to expand the expired
10-year statute of repose in 60-513(b), based on the doctrine of fraudulent
concealment. Under the doctrine of fraudulent concealment, the statute of limitations
for a fraud cause of action does not start to run until the plaintiff discovers the fraud or
until the plaintiff learns such facts as would lead a reasonable person to investigate.
See Dalton v. Lawrence National Bank, 169 Kan. 401, Syl. ¶ 6, 219 P.2d 719 (1950).
There are two problems with this argument. One, it is not clear that the fraudulent
concealment doctrine applies to a statute of repose in the same manner that it applies
to a statute of limitations. See Harding, 250 Kan. at 668. We need not decide this
question because even if the fraudulent concealment doctrine does apply to statutes of
repose, the doctrine only tolls the time in which a fraud action may be filed if the
plaintiff's claim for relief is validly grounded in fraud on its face. McCoy v. Wesley
Hospital & Nurse Training School, 188 Kan. 325, 331 362 P.2d 841 (1961) ("The
[fraudulent concealment] rule applies only when the party against whom the bar of the
statute is interposed is required to allege fraud in pleading his cause of action, or to
prove fraud to entitle him to relief."). Addressing this second concern, Dr. Vannaman
contends that Amanda has not pled a valid claim for fraud.

In support of her fraud claim, Amanda points to PIK Civ. 2d 14.42. This
instruction outlines the elements of "fraud by silence." Amanda claims that these
elements of "fraud by silence" are satisfied by Dr. Vannaman's conduct. She argues
that Dr. Vannaman had knowledge of material facts--that Amanda's chest x-ray
indicated possible mild scoliosis at age 3--which Amanda or her parents did not have.
She further argues that her parents were justified in relying on Dr. Vannaman's
evaluation of the x-ray without investigation because they had no reason to know of
facts which would make their reliance unreasonable. According to Amanda, Dr.
Vannaman, as her primary physician, was under an obligation to communicate to
Amanda or her parents all material facts concerning her chest x-ray and her back
condition. Amanda contends that, looking at the facts in the light most favorable to her
as the plaintiff, Dr. Vannaman intentionally failed to communicate to her or her parents
the material fact that Amanda's chest x-ray indicated she might have scoliosis.
Amanda argues that she and her parents justifiably relied upon Dr. Vannaman to
communicate the material fact about Amanda's scoliosis to them. Finally, Amanda
points out that she sustained damages as a result of Dr. Vannaman's failure to
communicate information about Amanda's chest x-ray to Amanda or her parents.
Based on this analysis, Amanda contends that the elements of fraud by silence are
met, as defined by PIK Civ. 2d 14.42, and that she validly pleads a claim of fraud
against Dr. Vannaman.

Dr. Vannaman alleges that his conduct did not constitute fraud. According to Dr.
Vannaman, this claim is simply Amanda's attempt to circumvent the statute of repose in
60-515(a) by creatively classifying a malpractice action as fraud. In support of this
position, the defendant cites to Malone v. University of Kansas Medical Center, 220
Kan. 371, 552 P.2d 885 (1976), and Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955
(1936).

In Malone, one of the plaintiffs, Rose Malone, visited the K.U. Medical Center
(Med Center) for treatment. A physician diagnosed an infection, gave her a
prescription, and ordered her home. The next day Rose's uterus ruptured, killing the
fetus she was carrying. She returned to the Med Center by ambulance and a total
hysterectomy was performed without her consent.

Rose and her husband filed an action against the Med Center, alleging that the
Med Center breached two express contracts. According to Rose, when she originally
visited the hospital for treatment, she entered into an express contract with the Med
Center in which the Med Center agreed to provide complete, competent, and necessary
medical treatment for her. Rose alleged that the Med Center breached this contract by
sending her home with an improper diagnosis. Rose and her husband also alleged that
when Rose returned to the hospital the next day, they entered into an express
agreement in which the Med Center agreed to provide "only necessary, competent, and
authorized medical treatment." 220 Kan. at 372. Rose and her husband contend that
the Med Center breached this contract by failing to provide competent doctors and by
performing a hysterectomy on Rose without her informed consent.

The Med Center filed a motion to dismiss, alleging that this was not a contract
action but was a tort action, from which it was immune as a governmental entity. The
trial court granted the motion, and the plaintiffs appealed. The pertinent issue in the
case was whether the plaintiffs' petition validly stated a contract claim or only alleged a
tort action. 220 Kan. at 373.

In answering the question, this court stated:

"The nature of a claim--whether it sounds in tort or contracts--is determined from the
pleadings [citations omitted] and from the real nature and substance of the facts therein alleged. 1
C.J.S. Actions, § 35, p. 1076. . . .

. . . .

"Certain duties and obligations are imposed upon physicians and hospitals by law.
Breach of such duty by a physician is malpractice, and an action for damages for malpractice is
one in tort, even though there was a contract, express or implied, for employment. [Citation
omitted.] Similarly an action for damages against a hospital for negligence, i.e., for breach of
duties imposed by law, sounds in tort. This is true though there may be a contract between the
parties.

. . . .

"In Tefft v. Wilcox, 6 Kan. 46, 61 [1870], this court held that a physician is obligated to
his patient under the law to use reasonable and ordinary care and diligence in the treatment of
cases he undertakes, to use his best judgment, and to exercise that reasonable degree of
learning, skill, and experience which is ordinarily possessed by other physicians in the same or
similar locations. We have continued to impose those duties upon physicians. See PIK Civil
15.01 and cases there cited. A physician also has the duty to make a reasonable disclosure to
the patient of pertinent facts within his knowledge relating to proposed treatment, in order that the
patient may intelligently consent or refuse the treatment. [Citation omitted.]

. . . .

" . . . What plaintiffs are complaining about is that the treatment provided was
negligent--all of the needed treatment was not furnished, and that which was furnished was
incomplete, incompetent, and unauthorized. In other words, the hospital and the physicians failed
to exercise that reasonable care, skill, and diligence which the law requires of hospitals and
physicians--regardless of any express contract therefor between the parties.

Thus, this court affirmed the district court's dismissal of the action.

In Travis, 143 Kan. at 285, this court said: "The law of this state is realistic.
Substance prevails over form. It is perfectly manifest that, notwithstanding the form
given to the petition, the gravamen of the action was malpractice, which is a tort, and
the action was barred by the two-year statute of limitations."

Based on the above cases, Dr. Vannaman alleges that he has a duty, in treating
or diagnosing patients, to use ordinary care and diligence and the degree of learning
ordinarily possessed by members of his profession in the same community under like
circumstances. The failure to uphold such standard is a form of negligent treatment
called malpractice. PIK Civ. 2d 15.01 and Comment. According to Dr. Vannaman,
Amanda is alleging that he did not use ordinary care and diligence, as other doctors
would have used, when he failed to disclose the information on her chest x-ray and
when he failed to diagnose her scoliosis in its mild stage. As such, Dr. Vannaman
asserts that this is a cause of action for malpractice, not fraud.

We agree. It is true that Dr. Vannaman's alleged conduct fulfills all of the
elements of fraud by silence under PIK Civ. 2d 14.42, just as the Med Center's actions
in Malone fulfilled all of the elements of a breach of contract. However, Dr. Vannaman's
alleged conduct was also proscribed by a legal duty which he had an obligation to
uphold. When it is alleged that such legal duty is violated, the law has classified the
cause of action created by this breach as a form of negligence called malpractice, not
as fraud or breach of contract, even if the violation of such duty also technically fulfills
the elements of fraud or breach of contract. Amanda does not allege a valid claim of
fraud against Dr. Vannaman.

This does not mean that a doctor can never be liable for fraud or breach of
contract. Instead, this simply means that a fraud or breach of contract cause of action
can only be based upon a physician's misconduct if that misconduct is beyond a breach
of the legal duty which every doctor has the obligation to uphold. See Noel v. Proud,
189 Kan. 6, 8, 11, 367 P.2d 61 (1961) ("As early as 1870 the Kansas court recognized
the general rule that a physician may contract specifically for a particular result. . . . It is
generally recognized that a physician or a surgeon may bind himself by express
contract to perform a cure or obtain specific results by treatment or an operation.").

"'As malpractice covers every way in which a patient is injured through the dereliction of
a doctor in his professional capacity, the approach, depending on the facts, can be through any of
several familiar forms of action. But no matter what the approach, it remains an action for
malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery
is where a physician represents that he has the skill to perform a certain operation when in fact he
does not. This form of action requires the same elements of proof that an action in fraud
requires, yet it could not be successfully disputed that as between the two it is an action for
malpractice.'" (Emphasis added.)

Since Amanda's claim for fraud is not valid, the doctrine of fraudulent
concealment cannot exist in this case. The doctrine may not be utilized to extend the
time for Amanda to file either her malpractice claim or her invalid fraud claim. Thus, the
only claim Amanda has against Dr. Vannaman is a malpractice claim grounded in
negligence. This action is barred by the 8-year statute of repose under K.S.A.
60-515(a).

CONSTITUTIONALITY OF K.S.A. 60-515(a)

Amanda contends that the 8-year statute of repose in K.S.A. 60-515(a), which
bars her malpractice claim against Dr. Vannaman, is unconstitutional as a violation of
equal protection, due process, and the open courts provision. Further, Amanda claims
that K.S.A. 60-515(a) is unconstitutional in light of K.S.A. 60-523, which establishes
different time limitations for minors who bring sexual abuse causes of actions.

A statute is presumed constitutional, and all doubts must be resolved in favor of
its validity. If there is any reasonable way to construe a statute as constitutionally valid,
the court must do so. A statute must clearly violate the constitution before it may be
struck down. State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994); Boatright
v. Kansas Racing Comm'n, 251 Kan. 240, 243, 834 P.2d 368 (1992). This court not
only has the authority, but also the duty, to construe a statute in such a manner that it is
constitutional if the same can be done within the apparent intent of the legislature in
passing the statute. State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied
492 U.S. 923 (1989).

K.S.A. 60-515 states as follows:

"(a) Effect. Except as provided in K.S.A. 60-523, if any person entitled to bring an
action, other than for the recovery of real property or a penalty or a forfeiture, at the time the
cause of action accrued or at any time during the period the statute of limitations is running, is less
than 18 years of age, an incapacitated person or imprisoned for a term less than such person's
natural life, such person shall be entitled to bring such action within one year after the person's
disability is removed, except that no such action shall be commenced by or on behalf of any
person under the disability more than eight years after the time of the act giving rise to the cause
of action.

"Notwithstanding the foregoing provision, if a person imprisoned for any term has
access to the court for purposes of bringing an action, such person shall not be deemed to be
under legal disability."

In Kansas, a person who is under 18, a minor, may not bring a lawsuit in his or
her own name. Instead, if a minor has a cause of action, it must be pursued by a
guardian, a conservator, a guardian ad litem, or a "next friend" who is an adult. K.S.A.
60-217. K.S.A. 60-515(a) tolls the statute of limitations for a minor's cause of action
until 1 year after the minor turns 18. In this way, the minor can bring the lawsuit once
the minor turns 18 (and before the minor turns 19) if the minor's "next friend" has failed
to bring the lawsuit during the plaintiff's minority. However, a minor does not always
have the opportunity to bring a lawsuit in his or her own name. K.S.A. 60-515(a) also
contains an 8-year statute of repose for all claims, not just malpractice claims, which
are based upon a tortious act that occurred during the plaintiff's minority. This statute
of repose runs from the time of the act giving rise to the cause of action, regardless of
when the minor experiences injury or the cause of action becomes reasonably
ascertainable and accrues. Ripley v. Tolbert, 260 Kan. 491, 497, 921 P.2d 1210
(1996). Thus, a minor's claim may be barred before the minor or the minor's parents
ever discover that the minor is injured or the cause of such injury.

The statute of limitations and repose for an adult's cause of action are different.
Most of an adult's causes of action are governed by a 2-year statute of limitations.
K.S.A. 60-513(a)(1)-(7). The statutes of repose for adults vary, depending upon the
type of action at issue. This is unlike the statute of repose for minors, which is 8 years,
regardless of the type of action. K.S.A. 60-515(a). For most causes of action, an adult
has a 10-year repose period from the time of the act giving rise to the cause of action in
which to file a claim. If the claim is not filed within this 10-year repose period, then the
claim is expired, regardless of whether the plaintiff's injury has been discovered. This
statute of repose is 2 years longer than the 8-year statute of repose allowed for minors.
For a medical malpractice action, an adult has a 4-year statute of repose period from
the time of the act giving rise to the cause of action in which to file a claim. If the claim
is not filed within this 4-year repose period, then the claim is expired, regardless of
whether the plaintiff's injury has been discovered. K.S.A. 60-513(c). The adult statute
of repose for medical malpractice actions is 4 years shorter than the 8-year statute of
repose allowed for minor actions.

EQUAL PROTECTION

First, Amanda contends that K.S.A. 60-515(a) is unconstitutional because it
violates equal protection. The principle of equal protection relevant to Amanda's claim
is embodied in § 1 of the Kansas Constitution Bill of Rights. See Stephens v. Snyder
Clinic Ass'n, 230 Kan. 115, 127-28, 631 P.2d 222 (1981). This section provides: "All
men are possessed of equal and inalienable natural rights, among which are life,
liberty, and the pursuit of happiness."

The equal protection provision of the United States Constitution is found in the
14th Amendment, which provides:

"All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges and immunities of citizens of the
United States; nor shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
(Emphasis added.)

Amanda contends that the statute of repose provision in K.S.A. 60-515(a)
classifies minor plaintiffs differently from adult plaintiffs and applies a shorter statute of
repose (8 years) to these plaintiffs than the general statute of repose which is applied to
adult plaintiffs (10 years). According to Amanda, this distinction in repose periods
between minors and adults creates a disparity between two classes of citizens which
places minors in a worse position than adults, thereby violating the equal protection
rights of minors.

Here, Amanda, the minor plaintiff in a medical malpractice action, is challenging
the 8-year statute of repose as a violation of equal protection which is detrimental to
her. An adult in a medical malpractice case only has a 4-year statute of repose, which
is 4 years shorter than the repose period allowed for a minor to bring a medical
malpractice action. Amanda, as a minor plaintiff, is better off in this medical malpractice
action than if she were an adult plaintiff because she had a longer statute of repose (8
years) than an adult would have had (4 years). Since Amanda is not actually worse off
than an adult plaintiff would be in this case, this equal protection challenge could be
found moot. However, the appellees do not raise this argument, so we will consider the
equal protection issue.

This court has traditionally treated malpractice legislation as economic regulation
in which the rational basis test is applied. Bair v. Peck, 248 Kan. 824, 831, 811 P.2d
1176 (1991) (abrogation of vicarious liability between certain health care providers);
Stephens, 230 Kan. at 130 (shortened statute of limitations in medical malpractice
cases). The 8-year statute of repose in K.S.A. 60-515(a) was enacted in 1976 in
response to the rapidly rising costs of medical malpractice insurance and the increasing
reluctance of underwriters to insure physicians in Kansas. See Report on Kansas
Legislative Interim Studies to the 1976 Legislature, Part II, Special Committee on
Medical Malpractice, L. 1976, ch. 254. Thus, K.S.A. 60-515(a) qualifies as malpractice
legislation, and the rational basis test is the appropriate standard to apply in evaluating
the equal protection concerns of the statute.

"The 'reasonable basis' test is violated only if the statutory classification rests on
grounds wholly irrelevant to the achievement of the State's legitimate objective. The state
legislature is presumed to have acted within its constitutional power, even if the statute results in
some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if
any state of facts reasonably may be conceived to justify it."

Thus, under the rational basis test, if the defendant can show any facts which indicate
that the different treatment between minor plaintiffs and adult plaintiffs is rationally
related to a valid legislative objective, then the different statute of repose under K.S.A.
60-515(a) for minors does not violate equal protection. See Leiker, 245 Kan. at 364;
State ex rel. Schneider v. Liggett, 223 Kan. 610, 620, 576 P.2d 221 (1978).

One of the espoused purposes of K.S.A. 60-515(a) is to help health care
providers procure available and affordable medical malpractice insurance. Before
K.S.A. 60-515(a) included the 8-year statute of repose, a minor had 1 year after
reaching the age of majority to file suit. See Wheeler v. Lenski, 8 Kan. App. 2d 408,
409, 658 P.2d 1056, rev. denied 233 Kan. 1093 (1983). Under this law, physicians
could have liability exposure for up to 19 years if a plaintiff was injured at birth. This
"longtail" of liability was viewed as "the most serious threat to the availability of care" by
physicians practicing in this area. Letter to Kansas Medical Society attached to Senate
Committee on Public Health & Welfare, March 2, 1976. The legislature heard testimony
that 90% of birth-related problems are discovered within the first 2 years of a child's life,
and that over 85% of all claims are filed within the first 6 years of a child's life. Minutes
of the House Committee on Insurance, pp. 2-3, January 30, 1976. After review of the
facts, the Kansas Legislature adopted an 8-year statute of repose for minors to insure
that health care providers in Kansas could obtain affordable malpractice insurance and
would continue to practice medicine in Kansas, making health care available to all
Kansas citizens. Thus, 60-515(a) is rationally related to the State's valid legislative
objective of keeping malpractice rates low so that health care providers will practice
medicine in Kansas.

Amanda concedes that low malpractice rates and health care availability were
some of the objectives the legislature hoped to gain when it amended 60-515(a) in
1976 to include an 8-year statute of repose. Amanda also seems to accept that the
statute was rationally related to these legislative objectives at that time. However,
Amanda contends that these are no longer valid legislative objectives. As Amanda
points out, 20 years have passed since the medical malpractice insurance scare of the
1970s and concerns about the rising costs of malpractice insurance and the availability
of health care in Kansas have dissipated. There are now caps on damages and other
statutes in place to control malpractice lawsuits and the cost of malpractice insurance.
According to Amanda, it is time to review whether malpractice insurance rates and
health care availability are still valid state interests which are served by restricting
minors' rights to bring an action to court to 8 years from the date of injury.

There is no doubt that reducing medical malpractice insurance rates so as to
insure the availability of health care in Kansas has been found to be a legitimate and
valid state interest in the past. Aves v. Shah, 258 Kan. 506, 526, 906 P.2d 642 (1995);
Farley v. Engelken, 241 Kan. 663, 684-85, 740 P.2d 1058 (1987); Liggett, 223 Kan. at
620; Stephens, 230 Kan. at 130. This court has no reason to suspect that the state
interests of keeping medical malpractice insurance rates low so that health care will be
available in Kansas are not just as valid state interests today as they were in 1976.

Questions about the validity of 60-515(a) have been raised twice before and held
constitutional in Ripley, 260 Kan. at 500, and Wheeler, 8 Kan. App. 2d at 409-11, but
the legislature has not chosen to reevaluate the importance of the state interests behind
K.S.A. 60-515(a). It is not this court's place to second-guess the legislature. Thus, we
hold that the 8-year statute of repose for minors in 60-515(a) is rationally related to
state interests which are still valid today as they were in 1976. As such, the 8-year
statute of repose applicable to minors in 60-515(a) in a medical malpractice action does
not violate equal protection.

DUE PROCESS

The principle of due process relevant to this claim is embodied in § 18 of the
Kansas Constitution Bill of Rights. It provides: "All persons, for injuries suffered in
person, reputation or property, shall have remedy by due course of law, and justice
administered without delay." (Emphasis added.)

The due process provision of the United States Constitution is found in the 14th
Amendment, which provides that no State shall "deprive any person of life, liberty, or
property, without due process of law."

Amanda contends that she suffered an injury due to Dr. Vannaman's failure to
diagnose her scoliosis in its early stage. Because Amanda was personally injured, she
asserts that she is entitled to a remedy by due course of law--a medical malpractice
action against Dr. Vannaman. K.S.A. 60-515(a) prohibits Amanda from utilizing this
remedy because she did not become aware of her claim until after the 8-year repose
period from the time of the act giving rise to the cause of action had expired. Thus,
Amanda argues that 60-515(a) is a violation of due process under § 18 of the Kansas
Constitution Bill of Rights and under the 14th Amendment of the United States
Constitution.

If a remedy protected by due process is abrogated or restricted by the
legislature, "such change is constitutional if 'the change is reasonably necessary in the
public interest to promote the general welfare of the people of the state,' Manzanares v.
Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974), and the legislature provides an
adequate substitute remedy" to replace the remedy which has been restricted. Aves,
258 Kan. at 521. The first question in a due process analysis is whether there is a
significant public interest to justify an 8-year statute of repose on actions brought by
minors and whether this restriction on minors' lawsuits has a real and substantial
relation to the objective sought. See Liggett, 223 Kan. at 614; Manzanares, 214 Kan.
at 599.

According to Dr. Vannaman, there is a significant public interest in assuring the
availability of reasonably priced malpractice insurance for doctors so that doctors will
continue to practice medicine in Kansas. Further, Dr. Vannaman contends that the
8-year statute of repose for minors in 60-515(a) has a real and substantial relation to
the state objectives of affordable, available malpractice insurance for doctors and
available health care for Kansas citizens. As discussed in the previous equal protection
subsection, these are valid state interests and the 8-year statute of repose for minors'
claims in 60-515(a) is rationally related to achieving these interests. There is no need
to reevaluate this analysis under a due process argument. Clements v. United States
Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988) ("The test in
determining the constitutionality of a statute under due process or equal protection
weighs almost identical factors."). Thus, the 8-year statute of repose restriction, in
60-515(a), on Amanda's common-law right to bring suit against Dr. Vannaman is
reasonably necessary to promote the general welfare of the people of the state. See
Brubaker v. Cavanaugh, 741 F.2d 318, 321 (10th Cir. 1984) (finding that the 4-year
statute of repose for adult medical malpractice claims under 60-513 is a reasonable
length of time and supports a legitimate interest in preventing stale claims; thus, it does
not violate due process even though it places a hardship on particular plaintiffs).

However, under Kansas law, "even if the modification of the common-law
remedy is consistent with public policy, this does not necessarily satisfy the due
process concerns. In order to insure due process, the legislature is required to provide
an adequate, substitute remedy when a common-law remedy," such as a minor's cause
of action for personal injury, is modified or restricted. Aves , 258 Kan. at 522 (citing
Jenkins v. Amchem Products, Inc., 256 Kan. 602, 628, 886 P.2d 869 [1994], cert.
denied 133 L. Ed. 2d 38 [1995]).

"A quick review of a few cases in which this court has discussed whether the legislature
provided an adequate quid pro quo for the abrogation of a remedy is helpful. The Manzanares
court found that the No-Fault Insurance Act's 'prompt, efficient payment of certain economic
losses' to accident victims was an adequate substitute remedy for the modification of
nonpecuniary remedies. 214 Kan. at 599. Furthermore, the mandatory availability of no-fault
insurance was found to be an adequate substitute remedy even though the injured party was
required to purchase the insurance himself or herself. 214 Kan. at 599.

"In Rajala v. Doresky, 233 Kan. 440, 441, 661 P.2d 1251 (1983), the court found that a
reduced burden of proof was an adequate substitute remedy for the abrogation of workers'
common-law remedy to sue employers for work-related injuries. Bair v. Peck, 248 Kan. 824, 844,
811 P.2d 1176 (1991), found that the mandatory Fund coverage was an adequate quid pro quo
for the modification of the vicarious liability remedy. In Samsel, 246 Kan. 336, the right to recover
more than $250,000 in noneconomic damages was abolished. The court found the legislature
provided a quid pro quo in that a district judge could not remit damages to less than $250,000
when the jury awarded damages in excess of $250,000. 246 Kan. at 362." Aves, 258 Kan. at
522-23.

Here, K.S.A. 60-515(a) restricts a minor's common-law right to bring a cause of
action for personal injuries to 8 years from the time of the act giving rise to the cause of
action. In some instances, as here, 60-515(a) abolishes a minor's right to bring a claim
altogether, because the minor may not discover that he or she has a claim until the
8-year statute of repose has already expired. The quid pro quo for the restriction or
abrogation a minor's common-law right in 60-515(a) is the continued availability of
health care in Kansas. Health care is readily available in Kansas because medical
malpractice insurance is available to physicians at a reasonable rate, in part due to the
passage of 60-515(a) and its 8-year statute of repose. If the availability of no-fault car
insurance is considered an adequate quid pro quo for a restriction on nonpecuniary
remedies, then the availability of health care also qualifies as an adequate quid pro quo
for an 8-year time restriction on a minor's common-law right to pursue a cause of
action. See Manzanares, 214 Kan. at 599. An adequate quid pro quo has been
provided, and 60-515(a) does not violate the Due Process Clauses of the Kansas
Constitution Bill of Rights or the United States Constitution.

OPEN COURTS

Amanda's open courts argument also is based on § 18 of the Kansas
Constitution Bill of Rights.

According to Amanda, this section guarantees that all injured persons, whether
they be minors or adults, will have access to the courts to receive a remedy. K.S.A.
60-515(a) restricts a minor's access to the court in that a minor's cause of action must
be filed within 8 years of the act giving rise to the cause of action. This often requires
that the action be filed before the minor ever reaches the age of majority and is able to
file the claim in his or her own name. In fact, if an act giving rise to a cause of action
occurs to a minor who is between the ages of 0 to 9, the minor will never be able to
bring the cause of action arising out of this act in his or her own name. Further, as in
this case, the 8-year statute of repose in 60-515(a) can extinguish a minor's claim
before a minor is even aware that he or she is injured or has a claim. Thus, Amanda
contends that her right to have access to the court in order to receive a remedy for her
injury, under § 18 of the Kansas Constitution Bill of Rights, has been violated by the 8-year statute of repose in K.S.A. 60-515(a). Amanda primarily bases this argument on a
Missouri case, Strahler v. St. Luke's Hosp., 706 S.W.2d 7 (Mo. 1986).

However, the Missouri constitutional provision at issue in Strahler (Art. 1, § 14 of
the Missouri Constitution) is distinguishable from the constitutional provision at issue in
this case. (§ 18 of the Kansas Constitution Bill of Rights.) The language of the two
provisions is similar, but they are interpreted in different ways. Missouri has recognized
a distinct open courts provision in its constitution which is separate and independent
from a due process provision. Kansas has not done so. Four Kansas cases refer to an
open courts provision. State ex rel. Stephan v. O'Keefe, 235 Kan. 1022, 1027, 686
P.2d 171 (1984); In re Marriage of Glenn, 18 Kan. App. 2d 603, 856 P.2d 1348, rev.
denied 253 Kan. 603 (1993); In re Marriage of Case, 18 Kan. App. 2d 457, 856 P.2d
169 (1993); In re S.M., 12 Kan. App. 2d 255, 738 P.2d 883 (1987). Three of these four
cases quote the definitive language regarding the open courts provision which is found
in O'Keefe, 235 Kan. at 1027:

"The constitutional guarantee of providing for open courts and insuring a civil remedy
for injuries to persons and property is a statement of our philosophy and a general rule which can
be used to solve civil conflicts. This right is generally regarded as one of the most sacred and
essential constitutional guarantees. However, the guarantee creates no new rights but merely is
declaratory of our fundamental principles. In light of this guarantee, it is the policy and the
obligation of the state to furnish and of the courts to give every litigant his day in court and a full
and ample opportunity to be heard. This right extends to everyone who may be materially
affected by the action of the court in a legal proceeding. The guarantee secures and places every
citizen within the protection of the law of the land. It insures the right of every person protected by
it to seek remedy by court action for any injuries done to him or his personal property. The
guarantee entitles the citizen to have justice administered according to the law without denial or
delay. A litigant is assured the right to prosecute or defend an action, provided he prosecutes or
defends the action as contemplated by law." (Emphasis added.) O'Keefe, 235 Kan. at 1027.

Kansas does not recognize a separate right to an open court, independent from
the recognized right to due process. Section 18 of the Kansas Constitution Bill of
Rights only recognizes and guarantees a person's independent right to due process.
Amanda's due process challenge has been previously addressed in this opinion and
rejected. Since a separate and independent right to an open court does not exist in
Kansas, Amanda's open courts challenge to the 8-year statute of repose in K.S.A. 60-515(a) must also fail.

DIFFERENT CLASS OF MINORS

In 1992, K.S.A. 60-515(a) (Ensley), with its 8-year statute of repose for all minors
and its 1-year statute of limitations from a minor plaintiff's 18th birthday, was amended
to exempt those causes of actions brought by minors under K.S.A. 60-523. K.S.A.
60-523 was enacted in 1992 and provides in pertinent part:

"(a) No action for recovery of damages suffered as a result of childhood sexual abuse
shall be commenced more than three years after the date the person attains 18 years of age or
more than three years from the date the person discovers or reasonably should have discovered
that the injury or illness was caused by childhood sexual abuse, whichever occurs later."

K.S.A. 60-523 establishes a longer statute of limitations (3 years) for minors who
are injured by sexual abuse, and it imposes no statute of repose at all on such actions.
According to Amanda, the enactment of 60-523 and its preferential treatment of minors
with sexual abuse claims violates due process, open courts, and the equal protection
rights of minors who must bring their claims under 60-515(a).

The due process concerns of 60-515(a) have been previously addressed. "[D]ue
process emphasizes fairness between the state and the individual dealing with the
state, regardless of how other individuals in the same situation are treated." Clements,
243 Kan. at 127. We have already concluded that 60-515(a) creates a fair relationship
between the State and a minor plaintiff; thus, it does not violate due process. The fact
that K.S.A. 60-523 was enacted and treats some minor plaintiffs differently does not
affect the prior due process analysis of 60-515(a).

Amanda also contends that 60-523 treats minors differently than they are treated
under 60-515(a), which violates the open courts provision. As discussed previously,
Kansas does not recognize an independent open courts provision; thus, an analysis of
such a provision is not necessary.

Finally, Amanda contends that 60-515(a) violates her equal protection rights in
light of the enactment of 60-523. As we have previously discussed, Amanda points out
that minors who are victims of sexual abuse are treated more favorably under 60-523
than minors who are victims of other torts are treated under 60-515(a).

The Equal Protection Clause forbids the arbitrary and discriminatory
classifications of similarly situated individuals if the classifications are not at least
rationally related to a legitimate state interest. See Farley, 241 Kan. at 669. K.S.A. 60-515(a) and K.S.A. 60-523 certainly classify minor plaintiffs into two classifications which
are treated differently. However, equal protection is only implicated when a statute
treats "arguably indistinguishable" or "similarly situated" classes of people differently.
Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 (1993).

These two classes of minor plaintiffs--those who are victims of sexual abuse and
those who are victims of other tortious conduct--are not arguably indistinguishable.
Minors who are victims of sexual abuse are not just physically damaged, but are often
psychologically damaged in such a way that prevents the minor from understanding
that he or she has been "injured" by the abuse, even if the minor is currently aware that
the abuse occurred. See Shirley v. Reif, 260 Kan. 514, 520, 920 P.2d 405 (1996).
Many victims of sexual abuse experience problems such as alcoholism, drug abuse,
and promiscuity, but they are not able to attribute these injuries to the sexual abuse
until some time later, although they may have been aware of the abuse all along. See
Shirley, 260 Kan. at 520. Further, many victims of sexual abuse are abused by their
parents or other family members. As such, the minor victim's parents are not in a
position to look out for the minor's rights and pursue a claim on the minor's behalf.

On the other hand, minor plaintiffs who are not victims of sexual abuse ordinarily
do not experience these problems with bringing their claims. Most minors are able to
communicate to their parents before the 8-year statute of repose expires that they have
experienced an injury. See Wheeler, 8 Kan. App. 2d at 409-11. Further, such injuries
are usually attributable to the tortious conduct of a defendant within an 8-year time
period of the tortious act. As the legislature heard when contemplating whether
60-515(a) should be enacted, 90% of birth-related medical malpractice claims are
discovered within the first 2 years of a child's life and over 85% of all claims are filed
within 6 years of occurrence. Minutes of the House Committee on Insurance, pp. 2-3,
January 30, 1976. Based on these differences, these two classifications of minor
plaintiffs are not similarly situated or arguably indistinguishable so as to implicate equal
protection. See Smith, 254 Kan. at 321-22 (holding that tort victims seeking punitive
damages are not "arguably indistinguishable" from tort victims who are not seeking
punitive damages because the law has always "treated the victims of particularly
egregious conduct differently from other tort victims"). Since equal protection is not
implicated by the minor classifications in 60-515(a) and 60-523, a discussion of whether
the classifications are at least rationally related to a legitimate state interest is not
necessary.

Further, K.S.A. 60-515(a) cannot be found to violate equal protection in light of
K.S.A. 60-523 because of the order in which the statutes were adopted. The 8-year
statute of repose provision of K.S.A. 60-515(a) was enacted in 1976 and has not been
found to violate equal protection despite several changes since 1976. K.S.A. 60-523,
creating the separate classification for minor plaintiffs who are victims of sexual abuse,
was not enacted until 1992. Amanda argues that 60-523, which was enacted 16 years
after 60-515(a) was enacted, can somehow cause 60-515(a) to retroactively become
unconstitutional. A subsequently enacted statute cannot cause a statute, which has
previously been found constitutional, to suddenly become unconstitutional. If there is
an equal protection concern regarding these two classifications, this concern must fall
on the more recently enacted statute of 60-523. Amanda does not fall into the class of
plaintiffs protected by 60-523. Regardless of the classifications created by 60-523 and
the constitutionality of these classifications, 60-515(a) was previously found
constitutional and cannot become unconstitutional by the enactment of 60-523. K.S.A.
60-515(a) does not violate equal protection, regardless of the status of K.S.A. 60-523.

CONTINUOUS TREATMENT DOCTRINE

Amanda became Dr. Vannaman's patient in 1976. In 1980, Dr. Vannaman
allegedly committed malpractice because he failed to tell Amanda or her parents that
Amanda's x-ray indicated she might have mild scoliosis. Under the 8-year statute of
repose in 60-515(a), Amanda had to file her malpractice action against Dr. Vannaman
by 1988 in order to be timely. In 1988, Amanda was still a patient of Dr. Vannaman,
and she continued to be treated by Dr. Vannaman until 1992. Amanda's medical
records were under the control of Dr. Vannaman throughout this time period. According
to Amanda, she had no reason to suspect any fault on the part of Dr. Vannaman, who
had treated her since she was a baby and whom she trusted throughout her childhood.
Further, Amanda asserts that she had no reason to look at her medical records until
1992, when she began to evaluate her future medical concerns as an adult. Thus,
Amanda's only opportunity to bring a claim against Dr. Vannaman expired in 1988 while
she was still a patient of Dr. Vannaman and while he still retained control over her
records, even though she had no reason to suspect that he was liable for anything at
that time. If the 8-year statute of repose under 60-515(a) did not begin to run until
Amanda was no longer a patient of Dr. Vannaman and until she had an opportunity to
discover his alleged malpractice, then Amanda's claim would be timely filed. As such,
Amanda asserts that the Kansas courts should recognize the continuous treatment
doctrine as a matter of good public policy. According to Amanda, the continuous
treatment doctrine would toll the 8-year statute of repose in 60-515(a) while the victim of
malpractice continues to be treated by the negligent doctor. Once the victim is no
longer a patient of the negligent doctor, then the 8-year time limit under 60-515(a)
would begin to run.

The trial court refused to recognize the doctrine of continuous treatment or apply
it to the facts of this case. Whether the doctrine of continuous treatment should be
recognized in Kansas within the context of a medical malpractice case is a question of
law. Thus, this court may exercise an unlimited de novo standard of review. Dickerson
v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993).

In Becker, 153 Kan. 374, this court rejected the plaintiff's continuous treatment
tolling theory. The Becker court found that it must strictly follow the legislature's intent.
Thus, the court found that "[t]he two years allowed by the statute of limitations in which
to bring an action for damages for malpractice begins to run from the time such
wrongdoing is committed," regardless of the negligent doctor's continued treatment of
the patient. 153 Kan. at 377 (case decided before discovery rule for statute of
limitations was adopted).

In Hill, 193 Kan. at 456-57, the plaintiff's malpractice action was dismissed
because it was filed after the statute of limitations had expired. The plaintiff appealed,
contending that the time for him to file his action should have been tolled while the
relationship between him and the doctor continued to exist. This court again rejected
the continuous treatment theory. In so holding, the court made the following analysis:

"Appellant contends that the statute of limitations did not commence to run on his cause
of action until the relationship of patient and physician relative to the particular injury and
treatment had ceased to exist.

"Appellant cites numerous cases from other jurisdictions in support of his contention.
Without analyzing the numerous cases cited, it must be conceded that appellant's contention is
supported by considerable authority. However, it does not appear to be the general rule. (41 Am.
Jur., Physicians and Surgeons, § 123.) It has never been the law in this state. This court has
adhered to the rule that the cause of action accrues and the statute of limitations begins to run on
an action for malpractice at the time the tort is committed. The time in which the action must be
brought is not tolled by the fact that the relationship of physician and patient continues to exist.

. . . .

"This court may not approve of the law announced above, however, it does not make
the law as to the limitation of time in which an action may be brought. There was no time fixed for
the bringing of actions under the common law other than the equity rule of laches. Limitations are
created by statute and are legislative, not judicial acts. (53 C.J.S., Limitations of Actions, § 2, p.
905.)

"The legislature has specifically stated that the statute of limitations begins to run on an
action such as is now before us when the cause of action accrues."

In Hecht, 208 Kan. at 93-94, this court stated:

"Plaintiff strenuously urges that the time when a cause of action in malpractice shall be
deemed to have accrued should be extended through the period of time . . . the physician
continues to treat the patient for the injury which resulted from the negligent act. [This doctrine is]
commonly designated as the . . . 'continuous treatment' [doctrine] . . . which ha[s] considerable
support. (See 80 A.L.R. 2d, Anno., p. 368, and cases cited therein, and A.L.R. 2d Later Case
Service, 1971 Supplement, 80 A.L.R. 2d, pp. 30-33 incl.; and Cornell Law Quarterly, Vol. 47, No.
3, p. 339.)

. . . .

"An examination of the cases in which [the doctrine] was adopted reveals that generally
the treatment was a judicial effort to soften the harshness of the statutory accrual rule existing in
the particular jurisdiction at the time. The Kansas legislature preempted policy making on the
subject by enacting in 1963 the additional provision of 60-513 [which tolls the running of the
statute of limitations until the negligent act accrues, or the injury becomes reasonably
ascertainable] and has given the matter further consideration by enacting in 1970 additional
provisions relating to injuries resulting from ionizing radiation. (See K.S.A. 1970 Supp. 60-513a,
60-513b and 60-513c.) The legislature did not see fit to mention . . . 'continuous treatment' as an
element in measuring the time in which a cause of action accrues. We are not inclined to do so
by judicially legislating. This is not to say that evidence stemming from . . . 'continuous treatment,'
when relevant, would not bear upon the issue as to when substantial injury becomes reasonably
ascertainable."

However, in support of her argument that Kansas should recognize the doctrine
of continuous treatment, Amanda cites to two Missouri cases and a Kansas legal
malpractice case.

The Missouri cases, Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943),
and Thompson v. Volini, 849 S.W.2d 48 (Mo. App. 1993), both recognize the doctrine of
continuous treatment, but the doctrine was not controlling in either case. The plaintiffs
in both cases were able to pursue their claims without relying on the continuous
treatment doctrine. This court has previously acknowledged that significant foreign
precedent exists to support the continuous treatment doctrine. Nonetheless, this court
has not followed the foreign precedent. Instead, this court has found that statutory
limitations on lawsuits are legislative enactments, which should not be modified by the
judiciary.

Finally, Morrison v. Watkins, 20 Kan. App. 2d 411, 889 P.2d 140, rev. denied
257 Kan. 1092 (1995), is the only Kansas case which Amanda cites in support of the
continuous treatment doctrine. In Morrison, the plaintiff brought a legal malpractice
action against, inter alia, an attorney who acted as a trustee of a trust for several years.
The trial court granted summary judgment to the attorney, finding that the statute of
limitations and the statute of repose governing the action had expired. The plaintiff
appealed, alleging that the continuous representation doctrine tolled the applicable
statute of limitations and statute of repose while she remained in an attorney/client
relationship with the attorney and used him as a trustee for her trust. 20 Kan. App. 2d
411, 413, 416-17, 422-23.

The Court of Appeals held, inter alia, that the continuous representation rule did
in fact toll the statute of limitations until the plaintiff fired her attorney as a trustee of her
trust. As such, the plaintiff's claim against her attorney did not accrue and the statute of
limitations did not begin to run until she terminated the attorney/client relationship.

However, the Court of Appeals also ruled that the continuous representation
doctrine did not toll statutes of repose. "Statutes of repose . . . abolish a cause of
action after a specific time period, even if the cause of action may not have accrued
yet." 20 Kan. App. 2d at 423 (citing Harding v. K.C. Wall Products, Inc., 250 Kan. 655,
668, 831 P.2d 958 [1992]). Thus, the court held that all of the attorney's alleged
negligent acts which occurred 10 years prior to the filing of the action were barred by
the 10-year statute of repose under 60-513(b), regardless of the fact that the
attorney/client relationship had continued during most of this 10-year time period. The
case was remanded so the trial court could determine which of the attorney's alleged
negligent acts occurred more than 10 years ago and had expired under the statute of
repose, despite any representation which continued after these acts occurred. The
plaintiff was entitled to proceed on all of the attorney's alleged negligent acts that had
occurred within 10 years of the action and had not been discharged by the statute of
repose. 20 Kan. App. 2d at 427.

Since Kansas applies the doctrine of continuous representation to attorneys, the
plaintiff contends that the analogous doctrine of continuous treatment should be applied
to physicians. Nonetheless, Dr. Vannaman asserts that even if this court should
recognize the doctrine of continuous treatment in the context of a medical malpractice
action, the doctrine would not apply to him. This is because the doctrine of continuous
treatment would not toll a statute of repose in a medical malpractice case, just as the
doctrine of continuous representation does not toll a statute of repose in a legal
malpractice case. 20 Kan. App. 2d at 423. Dr. Vannaman points out that his alleged
failure to diagnose Amanda's scoliosis occurred in 1980. In 1995, a full 15 years later,
Amanda brought this malpractice action. Thus, Amanda's action is barred by the 8-year
statute of repose in K.S.A. 60-515(a), which began to run in 1980 and expired in 1988.

We agree with Dr. Vannaman. As noted above, this court does not recognize
the continuous treatment doctrine in the context of a medical malpractice action. If we
were to do so, it would be of no comfort to Amanda because the statute of repose in
K.S.A. 60-515(a) would not be tolled by the continuous treatment doctrine and would
still bar her claim.

PARENTAL IMMUNITY

When the statute of repose expired in 1988, Amanda was 11 years old. Under
the law, Amanda was not capable of bringing a timely lawsuit against Dr. Vannaman in
her own name. In this situation, the law expects a minor's parents or "next friend" to
bring a timely lawsuit on behalf of the minor since the minor cannot do so his or herself.
Defendants Marcile and Arthur T. Bonin, Jr., are the parents and lawful guardians of
Amanda, and they had the authority to act on Amanda's behalf during her minority.
However, Amanda's parents failed to bring a timely malpractice action against Dr.
Vannaman on Amanda's behalf.

Amanda's scoliosis was diagnosed as moderately severe in the summer of 1987.
This was approximately 6 months before the 8-year statute of repose under 60-515(a)
expired and quashed any claim Amanda might have had against Dr. Vannaman.
Amanda's parents, despite knowledge that Amanda's scoliosis was already in a
moderately severe stage when it was discovered by the school nurse, did not take any
action to determine if Dr. Vannaman had failed to promptly diagnose Amanda's
scoliosis. Amanda's parents did not bring a lawsuit against Dr. Vannaman on
Amanda's behalf before the 8-year statute of repose in 60-515(a) expired. Thus,
Amanda sued her parents for failing to timely investigate and for failing to bring a timely
action against Dr. Vannaman before the 8-year statute of repose under 60-515(a)
expired.

Amanda's parents filed a motion to dismiss. They alleged that the claims against
them were barred by the doctrine of parental immunity. The trial court granted the
parents' motion and dismissed the action against them with prejudice. Amanda
appeals the trial court's dismissal of her negligence action against her parents.

'When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the
legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff's
petition. The motion in such case may be treated as the modern equivalent of a demurrer.'
[Citation omitted.]

'Disputed issues of fact cannot be resolved or determined on a motion to dismiss for
failure of the petition to state a claim upon which relief can be granted. The question for
determination is whether in the light most favorable to plaintiff, and with every doubt resolved in
plaintiff's favor, the petition states any valid claim for relief. Dismissal is justified only when the
allegations of the petition clearly demonstrate plaintiff does not have a claim.' [Citation omitted.]

'In considering a motion to dismiss for failure of the petition to state a claim for relief, a
court must accept the plaintiff's description of that which occurred, along with any inferences
reasonably to be drawn therefrom. However, this does not mean the court is required to accept
conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do
not reasonably follow from the description of what happened, or if these allegations are
contradicted by the description itself.' [Citation omitted.]" Bruggeman v. Schimke, 239 Kan. 245,
247, 718 P.2d 635 (1986).

The question of whether Kansas recognizes the doctrine of parental immunity in
a suit brought by a child based on the parents' failure to timely file a medical
malpractice action on behalf of the child is a question of law. This court may review
questions of law with an unlimited de novo standard of review. Dickerson, 253 Kan. at
844.

Both parties agree that the only Kansas case concerning the doctrine of parental
immunity is Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980). In the
Nocktonick case, Rosanna Nocktonick, an unemancipated minor child, brought suit
through a "next friend" (her maternal grandfather) against her natural mother, Regina
Nocktonick, and Regina's insurance company, to recover damages for injuries arising
out of a car accident caused by Regina's negligence. Regina moved for summary
judgment, alleging that the doctrine of parental immunity barred Rosanna's claim. The
trial court granted summary judgment to Regina, and Rosanna appealed.

In analyzing the issue, the Nocktonick court first outlined the general history,
justifications, and exceptions to the doctrine of parental immunity. Most legal scholars
conclude that the doctrine of parental immunity was not based in the English common
law, but was founded in the United States. The doctrine of parental immunity originated
in a Mississippi state court, Hewlett v. Ragsdale, 68 Miss. 703, 9 So. 885 (1891), and
spread across the country. The justifications for the doctrine included the following
public policies: the preservation of family harmony; the availability of other means of
redress for the child (criminal neglect laws applicable to parents); the court's desire to
refrain from interfering with parental care, discipline, and control of a child; the court's
desire not to drain a family's assets in favor of an injured minor/plaintiff at the expense
of other children in the family; the possibility that the parent/defendant might inherit from
the child the damages which the child/plaintiff recovered; and the danger of fraud and
collusion between a parent and a child. Many courts point out that the same public
policy concerns which support the parental immunity doctrine also support the
interspousal immunity doctrine.

Over the years, many criticisms of the parental immunity doctrine began to
develop. These criticisms resulted in some well-accepted exceptions to the doctrine of
parental immunity, including:

1. Parental immunity does not apply to a property tort brought by a minor child
against a parent; the doctrine only applies to personal torts.

2. Parental immunity does not exist if a parent intentionally or recklessly inflicts
bodily harm on a child.

3. Parental immunity does not exist if a parent negligently inflicts bodily harm on
a child and the harm occurs in the course of a business activity carried on by the
parent. 227 Kan. at 762-64.

Finally, the Nocktonick court pointed out that several states have abolished
parental immunity in negligence cases altogether. Other states only recognize the
doctrine of parental immunity when "the alleged negligent act involves an exercise of
parental authority over the child; and . . . where the alleged negligent act involves an
exercise of ordinary parental discretion with respect to the provision of food, clothing,
housing, medical and dental services, and other care." 227 Kan. at 764 (citing Goller v.
White, 20 Wis. 2d 402, 413, 122 N.W.2d 193 [1963]).

Before Nocktonick, this court had never addressed the doctrine of parental
immunity. It had never officially recognized the doctrine, nor made exceptions to it, nor
abrogated it. The Nocktonick court stated: "Here, the court is free to either adopt the
doctrine of parental immunity or to reject it, without overruling any prior Kansas case
law, rejecting any rule of the common law, or invalidating any Kansas statute. Stated
simply, our task is to decide which rule best serves the needs of justice in Kansas in the
closing years of the twentieth century." 227 Kan. at 759. This court decided in
Nocktonick that justice was best served by not recognizing the doctrine of parental
immunity when an unemancipated minor seeks to recover damages from a parent for
injuries caused by the negligence of the parent while operating an automobile. 227
Kan. at 767. The court stated:

"We believe that the authorities which favor abrogation of the parental immunity doctrine state the
proper approach in light of modern conditions and conceptions of public policy. We see no good
reason why children should not enjoy the same right to protection and to legal redress for wrongs
done them as others enjoy." 227 Kan. at 766.

Thus, this court allowed Rosanna to pursue a negligence action against her mother for
injuries arising out of a car accident caused by her mother. (It should be noted that
while Rosanna was still an unemancipated minor when this suit was brought against
her mother, the minor plaintiff's coming of age after injury by a parent but before
bringing suit against a parent, as in Amanda's situation, does not affect the parental
immunity analysis. Annot., 6 A.L.R.4th 1066, § 5.)

In so holding, the Nocktonick court cited several reasons for not recognizing
parental immunity in this particular situation. First, this court found that the protection of
family tranquility and harmony was not a valid reason to recognize parental immunity.
Instead, the court found that denying a child damages for injuries caused by a negligent
parent in an automobile accident would contribute to family disharmony and alienation,
not prevent it. The court pointed out that it is the injury, not the lawsuit to recover
damages for such injury, which causes disruption to harmonious family relationships.
Thus, a lawsuit which allows the child to recover damages for such injury and make the
child whole again might actually restore family harmony instead of disrupting it.
Therefore, this court found that the parental immunity doctrine in an automobile
negligence case does nothing to preserve family harmony and might actually disrupt
family harmony or at least hinder the family's recovery after an injury.

The Nocktonick court pointed out that most, if not all, negligent parents who
might be sued by a minor for injuries resulting from a car accident would be covered by
mandatory automobile liability insurance. Thus, family harmony is not really at risk in
allowing such a lawsuit because most damages will be collected from the parent's
insurance company, not the parent. If the child recovers damages by suing the
negligent parent and the parent's insurance company, this money might ease any
family financial difficulties surrounding the child's injuries. Thus, the suit might actually
improve family harmony. Further, with mandatory liability insurance for all drivers, the
fear that a parent's resources might be drained to pay damages to an injured child at
the expense of the other children in the family is diminished. In fact, if the injured child
is allowed to sue the negligent parent and the parent's insurance company, then the
money recovered can go to pay for the injured child's medical expenses. In that case,
the family's resources are saved so the resources can be spent on the other children in
the family.

Finally, this court addressed the concern about collusion if a child is allowed to
sue a negligent parent for injuries arising out of an automobile accident. This court
stated:

"We recognize a practical problem is that of possible collusion between parent and child
aimed at securing an unjustified recovery from an insurance company. But the possibility of
collusion exists to a certain extent in any case. Every day we depend on juries and trial judges to
sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown
that the courts are quite adequate for this task. In litigation between parent and child, judges and
juries would naturally be mindful of the relationship and would be even more on the alert for
improper conduct. We further must recognize that, under provisions ordinarily included in an
insurance policy, the insurance company has the right to disclaim liability when there is lack of
cooperation with the insurance company on the part of the insured. Lack of cooperation may be
found in inconsistent or contradictory statements by the insured or in collusion between the injured
party and the insured which results in false statements to the company." 227 Kan. at 768-69.

The Nocktonick court also pointed out that the prevention of collusion was a
claimed justification behind the Kansas guest statute. Nonetheless, such a concern
was not enough to justify the guest statute, and this court held that the guest statute
was unconstitutional. In so holding, this court found that it was "unreasonable to
eliminate causes of action of an entire class of persons simply because some
undefined portion of the designated class may file fraudulent lawsuits." 227 Kan. at
769. Instead, the "courts must depend upon the efficiency of the judicial processes to
ferret out the meritorious from the fraudulent in particular cases." 227 Kan. at 769.
Since the concern of collusion was not enough to justify the guest statute and since
there were other ways to deal with this concern, the Nocktonick court found that the
concern about collusion was not enough to justify recognition of the parental immunity
doctrine in this situation. Thus, this court allowed the child's suit against her negligent
parent for injuries arising out of a car accident to go forward.

In holding that the parental immunity did not exist in the situation at issue, the
Nocktonick court placed the following limitation on its holding:

"Our holding is limited to the factual circumstances of the case now before us--an
automobile tort action brought by an unemancipated minor child against a parent. Allowance of
such an action does not undermine parental authority and discipline nor does it threaten to
substitute judicial discretion for parental discretion in the care and rearing of minor children. We
recognize that there may be parental exercises of discretion and authority which should be
provided special protection in a court of law. Here we merely remove any barrier to the
enforcement of liability between parent and child in an automobile accident case brought by an
unemancipated minor against a parent. When confronted with other cases involving claimed
parental immunity, we will at that time determine to what extent parental immunity or privilege
should be recognized under the particular circumstances of the case then before us." 227 Kan. at
769-70.

Since Nocktonick was decided in 1980, neither this court nor the Court of
Appeals has decided another case concerning the parental immunity doctrine.
However, this court did address the doctrine of interspousal immunity in Flagg v. Loy,
241 Kan. 216, 734 P.2d 1183 (1987). The Flagg court found that the traditional public
policy concerns which were used to justify the interspousal immunity doctrine--stare
decisis, the preservation of family harmony, the prevention of collusion between
spouses, and the absence of legislative action to abolish the doctrine--no longer
supported the doctrine under a modern view of today's family. Thus, the court
abrogated the doctrine of interspousal immunity. 241 Kan. at 224-25. These same
policy concerns which justified the interspousal immunity doctrine are also used to
justify the parental immunity doctrine. Since these public policy concerns no longer
support the doctrine of interspousal immunity, Flagg, 241 Kan. 216, Amanda contends
that they also do not support the doctrine of parental immunity. Amanda asserts that
parental immunity is a judicial creation which is no longer supported by the public policy
that originally justified it; thus, Amanda argues that parental immunity should not be
recognized in this case.

On the other hand, the Bonins point out that one of the reasons the Nocktonick
court chose not to recognize parental immunity in automobile negligence cases was
that the potential parent/defendants would be covered by mandatory liability insurance.
The availability of liability insurance weakened several of the public policy concerns
which had previously justified parental immunity. For instance, with insurance, family
harmony was not as much at risk because the child/plaintiff was actually recovering
from the insurance company, not the parent. Further, other children in the family would
not be left without money should the injured child win a damage award against the
parent. Instead, this award would normally be paid by the parent's insurance company
so the parent would still have all of his or her personal resources available to care for all
of the children, not just the injured child.

Here, as the Bonins point out, mandatory insurance is not a factor. Amanda is
suing her parents for failure to bring a timely action against Dr. Vannaman. Amanda
apparently believes that if her parents are not immune and if she wins this negligence
action, any damages awarded to Amanda will be paid by her parents' homeowner's
insurance policy. We express no opinion whether error of omissions is covered by a
homeowner's insurance policy. Moreover, most homeowner's insurance policies do not
cover interfamily torts. Most importantly, not all parents have homeowner's insurance.
Homeowner's insurance is not mandatory. Thus, if this type of suit is allowed, a minor
could sue his or her parent for failure to timely bring a medical malpractice action on the
minor's behalf, and the minor's parent would most likely have to pay the minor's
damage award directly out of the parent's pocket. If this occurs, then a minor would be
directly suing a parent, possibly causing family disharmony. Further, the minor
plaintiff's siblings might suffer economically because all of the parent's money is used to
pay the plaintiff's damage award. Thus, the public policy concerns which were
weakened in Nocktonick due to mandatory automobile liability insurance are at work in
this case. As such, the Bonins contend that these public policy concerns weigh in favor
of recognizing parental immunity in this case.

Kansas has never recognized the broad doctrine of parental immunity.
Nocktonick made it clear that parental immunity does not apply when an
unemancipated minor child sues a parent to recover damages for injuries arising out of
the parent's negligent operation of an automobile. While Kansas did recognize the
doctrine of interspousal immunity at one time, this court completely abrogated that
doctrine in Flagg, 241 Kan. 216. Based on this precedent, Kansas is leaning toward
the nonrecognition of family immunities.

However, Nocktonick made it clear that this court would decide whether parental
immunity existed in a certain situation on a case-by-case basis. With this in mind,
Nocktonick recognized that some parental immunity may be necessary so as not to
"undermine parental authority and discipline nor . . . substitute judicial discretion for
parental discretion in the care and rearing of minor children." 227 Kan. at 770. The
Nocktonick court conceded that "there may be parental exercises of discretion and
authority which should be provided special protection in a court of law." 227 Kan. at
770.

There are three different standards that different courts use to determine if
parental immunity applies in a particular situation. The first standard is a case-by-case
analysis. The second standard is an abrogation of immunity except in cases "[w]here
the alleged negligent act involves an exercise of parental authority over the child" or
"where the alleged negligent act involves an exercise of ordinary parental discretion
with respect to the provision of food, clothing, housing, medical and dental services and
other care," or where the alleged negligent act is based upon the parent's negligent
entrustment of a dangerous instrumentality to a child. Goller, 20 Wis. 2d at 413; see
Holodook v. Spencer, 36 N.Y.2d 35, 364 N.Y.S.2d 859, 324 N.E.2d 338 (1974). The
third standard is a complete abrogation of parental immunity in all cases. The courts
using this standard place the burden upon the jury to determine whether a parent was
using reasonable parental discretion in disciplining, supervising, or raising a child, under
the reasonable prudent parent standard, when the child's injury occurred. Anderson v.
Stream, 295 N.W.2d 595, 599 (Minn. 1980). If so, then the parent is not liable for
negligence. These courts favor the reasonable prudent parent standard over the
immunity exceptions in order to avoid the arbitrary distinctions in discerning what
parental conduct falls inside or outside of an immunity exception. Further, these cases
find it offensive that once a parent falls into an immunity exception, then the parent may
act negligently without fear of liability. See, e.g., Gibson v. Gibson, 3 Cal. 3d 914, 921,
92 Cal. Rptr. 288, 479 P.2d 648 (1971).

These standards are more fully discussed in Annot., 6 A.L.R.4th 1066.
Nocktonick has already enumerated the standard to be used in Kansas--a presumption
of no immunity except in cases where the exercise of parental discretion or authority is
involved. This court will evaluate each claim of immunity on a case-by-case basis to
determine whether the alleged act of negligence falls within the parental discretion
exception and is protected by parental immunity.

A parent's decision regarding whether a child's medical condition should be
investigated for signs of malpractice or whether a malpractice action should be pursued
is an exercise of parental discretion regarding a child's medical condition and financial
well-being in which a court should not interfere. The alleged acts of negligence by
Amanda's parents in failing to investigate or pursue a medical malpractice action
against Dr. Vannaman on Amanda's behalf are entitled to parental immunity.

If immunity for such actions is not provided, then a parent will always feel
obligated to sue on behalf of his or her child, whether or not the parent thinks it is the
right decision for the family, in order to avoid being a defendant in a negligence action
brought by the child. As a result, the court would indirectly be interfering in a very
personal family decision. The best way to avoid this situation is to make parents
immune from actions brought by a child alleging that a parent is negligent for failing to
investigate or timely file a medical malpractice action on behalf of the child.

To allow such an action would substitute judicial discretion for parental discretion
in the care of a minor child regarding medical decisions. Deciding whether a medical
malpractice action should be pursued on behalf of a minor is an exercise of parental
discretion which should be provided special protection in a court of law. See
Nocktonick, 227 Kan. at 769-70.

This decision is not meant to limit this court's leaning in any way toward the
nonrecognition of parental immunity. See Nocktonick, 227 Kan. 758; Flagg, 241 Kan.
216. In confronting cases of claimed parental immunity, the Nocktonick court said it
would rule on a case-by-case basis. This case is one of those cases in which an
exception to the general rule of no immunity should be recognized, and the Bonins
should be afforded the protection of parental immunity.